1. Tort Law and Product Liability Chapter 2

2. Tort Law Tort – Conduct that is either careless or intentional that results in harm or injury to a person or property Tort – Conduct that is either careless or intentional that results in harm or injury to a person or property Torts often result in a payment of monetary damages to the injured party (Plaintiff) by the causing party (Defendant) Torts often result in a payment of monetary damages to the injured party (Plaintiff) by the causing party (Defendant) Torts include negligence, intentional torts, and product liability Torts include negligence, intentional torts, and product liability

3. Negligence Negligence - Unintentional tort that results in personal injury Negligence - Unintentional tort that results in personal injury Requires that four key elements are proved Requires that four key elements are proved Standard of Care Standard of Care Breach of duty Breach of duty Causation Causation Injury Injury

4. Standard of Care Defined as the duty or responsibility of the Defendant for the protection of others Defined as the duty or responsibility of the Defendant for the protection of others Based on – Based on – Case precedent Case precedent Rules and Regulations or State/Federal Laws Rules and Regulations or State/Federal Laws Community Practice/Industry Standard Community Practice/Industry Standard Professional associations’ position statements Professional associations’ position statements Agency and Organization Manuals Agency and Organization Manuals Expert opinions Expert opinions

5. Standard of Care Standard of care may also be triggered by relationship to injured party (e.g., lifeguard to swimmer) Standard of care may also be triggered by relationship to injured party (e.g., lifeguard to swimmer) Once you begin to render aid, you have a duty to proceed with reasonable care Once you begin to render aid, you have a duty to proceed with reasonable care If standard of care is based on a statute, violation of the statute is negligence per se (as a matter of law) If standard of care is based on a statute, violation of the statute is negligence per se (as a matter of law)

6. Breach of Duty Means that the standard of care was not met Means that the standard of care was not met Can arise out of Can arise out of Case precedent Case precedent Rule, guideline, or statute violation Rule, guideline, or statute violation Failure to follow position statement Failure to follow position statement Breach of agency policy Breach of agency policy

7. Causation Requires a connection between the breach of duty and the resulting injury Requires a connection between the breach of duty and the resulting injury Two types of causation Two types of causation Cause in fact Cause in fact Requires direct connection between Plaintiff’s injury and the Defendant’s action or omission Requires direct connection between Plaintiff’s injury and the Defendant’s action or omission Can allow recovery from multiple Defendants Can allow recovery from multiple Defendants Proximate cause Proximate cause Requires that the Defendant’s action or omission and the injury are strongly, if not directly, linked Requires that the Defendant’s action or omission and the injury are strongly, if not directly, linked Commonly requires foreseeability Commonly requires foreseeability

8. Injury Requires actual harm – clear and convincing proof of physical or emotional injury Requires actual harm – clear and convincing proof of physical or emotional injury More than just hurt feelings or upset More than just hurt feelings or upset Damages Damages Compensatory Compensatory Pain and suffering, economic loss, loss of consortium, wrongful death Pain and suffering, economic loss, loss of consortium, wrongful death Punitive Punitive Meant to punish Defendant Meant to punish Defendant

9. Gross Negligence Still unintentional, but requires a higher degree of carelessness Still unintentional, but requires a higher degree of carelessness Some districts define it as willful, wanton, and reckless conduct which shows a disregard for the safety of another Some districts define it as willful, wanton, and reckless conduct which shows a disregard for the safety of another

10. Negligence Defenses Assumption of risk Assumption of risk Risk is inherent to the sport Risk is inherent to the sport Inherent risk is one which cannot be removed without fundamentally altering the activity Inherent risk is one which cannot be removed without fundamentally altering the activity Participant must voluntarily consent to be exposed to the risk Participant must voluntarily consent to be exposed to the risk Consent may be express or implied Consent may be express or implied Consent is only within rules of activity Consent is only within rules of activity Participant must know, understand, and appreciate the inherent risk of the activity Participant must know, understand, and appreciate the inherent risk of the activity Difficult to prove with regards to children Difficult to prove with regards to children

11. Negligence Defenses Express v. Implied Assumption of Risk Express v. Implied Assumption of Risk Express Express Signed, written waiver which spells out risks Signed, written waiver which spells out risks Verbally – activity leader discusses risks, and participant acknowledges those risks and chooses to go forward with participation Verbally – activity leader discusses risks, and participant acknowledges those risks and chooses to go forward with participation Implied Implied Return participant, or one who has participated in identical activity previously Return participant, or one who has participated in identical activity previously Spectators impliedly assume risk of injury from flying objects (e.g., baseballs, hockey pucks, etc.) Spectators impliedly assume risk of injury from flying objects (e.g., baseballs, hockey pucks, etc.)

12. Negligence Defenses Contributory negligence – only in a handful of districts Contributory negligence – only in a handful of districts Focuses on the negligent conduct of the Plaintiff Focuses on the negligent conduct of the Plaintiff Is an absolute defense, regardless of how “guilty” each side is Is an absolute defense, regardless of how “guilty” each side is Comparative negligence – in the majority of districts Comparative negligence – in the majority of districts Apportions damages based on percentage of fault Apportions damages based on percentage of fault

13. Intentional Torts A tort committed with intent to harm A tort committed with intent to harm Can be broken into categories – harm to persons and harm to property Can be broken into categories – harm to persons and harm to property Harm to Persons Harm to Persons Assault and battery Assault and battery Battery – intentional, harmful or offensive touching of another without their consent Battery – intentional, harmful or offensive touching of another without their consent Assault – the threat of a battery Assault – the threat of a battery

14. Intentional Torts Harm to persons (cont’d.) Harm to persons (cont’d.) Defamation Defamation Must be: Must be: Untrue/False Untrue/False Harmful Harmful Made to a third party Made to a third party Includes: Includes: Slander – Verbal defamation Slander – Verbal defamation Libel – Written defamation Libel – Written defamation Public figures have less protection against defamation Public figures have less protection against defamation Requires showing of actual malice or reckless disregard for truth Requires showing of actual malice or reckless disregard for truth

15. Intentional torts Harm to persons (cont’d.) Harm to persons (cont’d.) False Imprisonment False Imprisonment Requires intentional, wrongful, and unreasonable imprisonment of another Requires intentional, wrongful, and unreasonable imprisonment of another “Imprisonment” merely means the “victim” believes he cannot leave “Imprisonment” merely means the “victim” believes he cannot leave As a sport manager, beware of the reasonableness of your actions when detaining somebody As a sport manager, beware of the reasonableness of your actions when detaining somebody

16. Intentional Torts Harm to persons (cont’d.) Harm to persons (cont’d.) Intentional Infliction of Emotional Distress Intentional Infliction of Emotional Distress Requires a person to intentionally commit an act so extreme and outrageous that it results in severe emotional distress to another person Requires a person to intentionally commit an act so extreme and outrageous that it results in severe emotional distress to another person Sometimes arises out of sexual harassment and/or out of practical jokes gone wrong… Sometimes arises out of sexual harassment and/or out of practical jokes gone wrong…

17. Intentional Torts Harm to persons (cont’d.) Harm to persons (cont’d.) Invasion of the right to privacy Invasion of the right to privacy Right to privacy stems from several amendments to the U.S. Constitution Right to privacy stems from several amendments to the U.S. Constitution Includes Includes Appropriation – when someone uses, without permission and for their own benefit, the likeness, or other identifying characteristics of another person Appropriation – when someone uses, without permission and for their own benefit, the likeness, or other identifying characteristics of another person Intrusion – Invasion of a person’s home or personal belongings without permission Intrusion – Invasion of a person’s home or personal belongings without permission False Light – virtually identical to defamation False Light – virtually identical to defamation Public Disclosure of Private Facts – when facts about a person’s private life Public Disclosure of Private Facts – when facts about a person’s private life

18. Intentional Torts Harm to Property Harm to Property Includes personal property, as well as real property Includes personal property, as well as real property Trespass to Real Property Trespass to Real Property When a person intentionally enters the land of another, or causes another person or object to enter the land of another without permission or necessity When a person intentionally enters the land of another, or causes another person or object to enter the land of another without permission or necessity Does not require actual harm to the property Does not require actual harm to the property

19. Intentional Torts Harm to Property (cont’d.) Harm to Property (cont’d.) Trespass to Personal Property Trespass to Personal Property The initial non-permitted taking of one’s personal property The initial non-permitted taking of one’s personal property If the property is not returned, the tort is switched to conversion If the property is not returned, the tort is switched to conversion Conversion is the taking and depriving another of his right to the exclusive possession of personal property Conversion is the taking and depriving another of his right to the exclusive possession of personal property

20. Intentional Torts Harm to Property (cont’d.) Harm to Property (cont’d.) Disparagement of Property Disparagement of Property When someone makes a false comment about the property of another, which results in harm to the owner When someone makes a false comment about the property of another, which results in harm to the owner Slander of title – pertains to the ownership or title of someone’s property (false accusation that so and so’s property is actual stolen goods) Slander of title – pertains to the ownership or title of someone’s property (false accusation that so and so’s property is actual stolen goods) Slander of quality - pertains to the quality of goods (false accusation that diamonds being sold are fake) Slander of quality - pertains to the quality of goods (false accusation that diamonds being sold are fake)

21. Product Liability Liability associated with harm caused by a consumer product Liability associated with harm caused by a consumer product Initially, only seller was at risk – now liability extends through entire chain of manufacture Initially, only seller was at risk – now liability extends through entire chain of manufacture When suing manufacturers under product liability, you can claim negligence, strict liability, and/or breach of warranty When suing manufacturers under product liability, you can claim negligence, strict liability, and/or breach of warranty

22. Product Liability Negligence of manufacturer Negligence of manufacturer Requires all four elements of negligence be claimed Requires all four elements of negligence be claimed Very difficult to win this type of case (one element is often difficult to prove) Very difficult to win this type of case (one element is often difficult to prove) Strict liability Strict liability Concept where liability results, regardless of fault Concept where liability results, regardless of fault Only requires Plaintiff to show product was defective when it left the Defendant’s hands and that the defect caused the Plaintiff’s injuries Only requires Plaintiff to show product was defective when it left the Defendant’s hands and that the defect caused the Plaintiff’s injuries Puts onus on manufacturer to anticipate hazards and guard against them Puts onus on manufacturer to anticipate hazards and guard against them

23. Product Liability Breach of warranty Breach of warranty Not a tort theory, but a contractual remedy Not a tort theory, but a contractual remedy Commonly used when consumer is dissatisfied and wants product repaired or replaced Commonly used when consumer is dissatisfied and wants product repaired or replaced Based on premise of contract between manufacturer and consumer to provide a product that meets certain requirements Based on premise of contract between manufacturer and consumer to provide a product that meets certain requirements Generally not used in PI cases Generally not used in PI cases Warranty can be express or implied Warranty can be express or implied

24. Product Liability Breach of Warranty Breach of Warranty Implied warranty fitness Implied warranty fitness Exists when retailer, distributor, or manufacturer knows goods are meant for a certain purpose, and the consumer is relying on that purpose in purchasing the goods Exists when retailer, distributor, or manufacturer knows goods are meant for a certain purpose, and the consumer is relying on that purpose in purchasing the goods Implied warranty of merchantability Implied warranty of merchantability An implied promise by the seller that the product is reasonably appropriate for the general purpose for which it was sold. An implied promise by the seller that the product is reasonably appropriate for the general purpose for which it was sold. All warranties can be modified, disclaimed, and/or limited All warranties can be modified, disclaimed, and/or limited

25. Product Liability Types of defects Types of defects Manufacturing defect Manufacturing defect Exists when a product is manufactured incorrectly Exists when a product is manufactured incorrectly A certain “lot” may be defective A certain “lot” may be defective Design defect Design defect Exists when a product is unreasonably designed Exists when a product is unreasonably designed Means all such products are defective Means all such products are defective Requires a risk-utility approach Requires a risk-utility approach Foreseeable risks could have been reduced or avoided by the adoption of a reasonable alternative design Foreseeable risks could have been reduced or avoided by the adoption of a reasonable alternative design

26. Product Liability Manufacturers have a duty to warn consumers of dangers that are inherent in the reasonable use of the product Manufacturers have a duty to warn consumers of dangers that are inherent in the reasonable use of the product Must also warn customers of dangers resulting from foreseeable misuses of the product Must also warn customers of dangers resulting from foreseeable misuses of the product Warnings must be reasonable, easy to read and comprehend, and conspicuous Warnings must be reasonable, easy to read and comprehend, and conspicuous